Ethics of Institutional Apologies

130 Pages·2009·0.5 MB·English

by  Autumn Boyer

IN A “SORRY” STATE: THE ETHICS OF INSTITUTIONAL APOLOGIES IN
RESPONSE TO MEDICAL ERRORS

by
Autumn R. Boyer
B.A., Speech Communication, California Polytechnic State University, 2003
M.A., Communication & Rhetoric, University of Pittsburgh, 2005

Submitted to the Graduate Faculty of
the School of Arts and Sciences in partial fulfillment
of the requirements for the degree of
Master of Arts

University of Pittsburgh
9063-
2009
UNIVERSITY OF PITTSBURGH
SCHOOL OF ARTS AND SCIENCES

This thesis was presented

by

Autumn R. Boyer

It was defended on
March 12, 2009
and approved by
John Lyne, Professor of Communication, Center for Bioethics and Health Law
Mark Wicclair, Adjunct Professor of Medicine, Center for Bioethics and Health Law
and Professor of Philosophy, West Virginia University
Thesis Director: Lisa S. Parker, Associate Professor of Human Genetics,
Center for Bioethics and Health Law

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Copyright © by Autumn R. Boyer
2009
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IN A “SORRY” STATE: THE ETHICS OF INSTITUTIONAL APOLOGIES IN
RESPONSE TO MEDICAL ERRORS
Autumn R. Boyer, M.A.
University of Pittsburgh, 2009

The rise in prominence of public apologies since the mid 1990s and increased awareness of the
frequency and severity of medical errors in the United States has led to scholarly and
professional interest in doctors’ apologies in response to medical error. Literature targeting
health care professionals indicates a growing consensus about the ethical and professional
imperatives for apology. However, it also exposes the authors’ difficulty in achieving conceptual
clarity about apology and its application to modern clinical practice carried out by multiple
providers within complex medical, legal, and insurance systems.
This project articulates the ethical underpinnings of apology and establishes ethically and
professionally appropriate responses—both by clinicians and administrators of health care
institutions—to medical error. Foundationally, this argument includes clarifying salient
distinctions related to medical error and adverse events and conceptualizing apology as it is
applicable to health care contexts. In sum, a policy or culture of responsibility—to which
apology may instrumentally contribute—is ethically valuable and contributes to overall quality
of care in contemporary health care institutions. The roles and responsibilities of clinicians and
administrators within a culture of responsibility are discussed, in addition to the structure,
applications, limitations, and ethical considerations of policies regarding apology.
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TABLE OF CONTENTS
1.0 ERRORS, WRONGS, AND RESPONSIBILITY.............................................................1
1.1 UNDERSTANDING MEDICAL ERROR................................................................4
1.2 OFFENSES, WRONGS, AND HARMS..................................................................15
1.3 INDIVIDUAL AND INSTITUTIONAL RESPONSIBILITY...............................18
1.4 JUSTIFICATION AND EXCUSE...........................................................................21
1.5 CASE EXAMPLE: JESICA SANTILLAN.............................................................24
2.0 THE COMPLEXITIES OF APOLOGIES......................................................................33
2.1 DEFINING APOLOGY............................................................................................34
2.1.1 Constitutive Elements....................................................................................34
2.1.2 Goals of Apology............................................................................................39
2.1.3 Genuine, Accepted, and Successful Apologies.............................................45
2.2 WHAT WARRANTS AN APOLOGY....................................................................54
2.3 APOLOGIZING ON BEHALF OF OTHERS.......................................................61
2.4 RELATED BEHAVIORS.........................................................................................71
2.5 APOLOGIES AND RESPONSES TO ERROR IN THE SANTILLAN CASE..74
2.5.1 Public Statement from the Transplant Surgeon.........................................75
2.5.2 Public Statement from the Hospital’s Chief Executive Officer.................79
2.5.3 Public Statement from Duke University......................................................83
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2.5.4 Reactions to the Public Statements...............................................................88
3.0 TOWARD A CULTURE OF RESPONSIBILITY.........................................................93
3.1 IMAGINING A CULTURE OF RESPONSIBILITY IN THE SANTILLAN
CASE...................................................................................................................................94
3.2 ON APOLOGIES AND TAKING RESPONSIBILITY........................................99
3.3 APOLOGIES IN HEALTH CARE INSTITUTIONS..........................................104
3.3.1 Apologies by Clinicians................................................................................109
3.3.2 Apologies by Administrators.......................................................................110
3.4 CULTIVATION OF RESPONSIBILITY-TAKING...........................................112
4.0 CONCLUSION................................................................................................................115
BIBLIOGRAPHY.....................................................................................................................121

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1.0 ERRORS, WRONGS, AND RESPONSIBILITY
It seems that every week another public figure, ranging from professional athletes to heads of
state, offers a widely publicized apology. Psychiatrist and former medical school chancellor
Aaron Lazare notes that, since the mid 1990s, the public prominence of apologies has been
noticeably higher than in past generations.1 This “apology phenomenon” has been of interest in
lay and scholarly circles alike.2 One realm where apologies have been widely discussed and
remain controversial, despite the proliferation of political and public apologies in other realms, is
in health care. The current discussions of apologies in medical literature, however, do not mean
that doctors have not always had personal and professional concerns about the ethically and
professionally appropriate way to respond to the realization that they have made a mistake.
Adding fuel to the proverbial fire of the apology question, the Institute of Medicine’s 1999
report, To Err is Human, shocked the nation with its figures about the frequency and severity of
medical errors occurring in the United States each year.3
While access to and quality of health care have been perennial issues in public,
professional, and academic spheres, the specific focus on the role of apology in health care
contexts has sharpened only in the early years of this millennium. There are likely multiple

1 Aaron Lazare, On Apology (New York: Oxford University Press, 2004), 6-7.
2 Lazare, On Apology, 7.
3 Nancy Berlinger, After Harm: Medical Error and the Ethics of Forgiveness (Baltimore: Johns Hopkins
University Press, 2005), 11.
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reasons for increased concern about professional responses to medical error. First, as Lazare
indicates, Americans have become increasingly interested in and attentive to public apologies
offered for a wide range of offenses. Second, Americans’ attitudes about the relationship
between patients and care providers has shifted away from a predominantly paternalistic “doctor
knows best” mentality to a more cooperative care team approach in which the patient has the
right to (and, prescriptively, should) participate in decisions about her health care. Attention to
such rights is incompatible with the traditional “deny and defend” stance of hospitals and doctors
toward adverse events, a stance that is falling out of favor with the increased advocacy of an
acknowledge and apologize approach. Whereas it was once commonly accepted that disclosing a
medical error and apologizing to the patient (or the patient’s family) would render well-meaning
doctors vulnerable to career-ending malpractice suits, today nearly 30 states have laws protecting
physicians’ empathic and apologetic expressions to patients, and a handful have passed
legislation mandating disclosure of adverse events.4 Today, newspaper articles with titles such as
“Hospitals Learn to Say Sorry”5 or “Doctors Say ‘I’m Sorry’ Before ‘See You in Court,’”6
pieces in medical journals that advise physicians how to “Apologize Like a Pro,”7 and even a
book about “the power of apology in medicine”8 are not rarities. While these publications
indicate a growing consensus about the ethical and professional imperatives for apology, they
also expose the difficulty in the field to achieve and maintain conceptual clarity about apology.
Some apology advocates are unclear about how—or if—apology is distinguished from mere

4 Stacey Butterfield, “Apologize Like a Pro,” ACPHospitalist (January 2008): 14.
5 Maura Lerner, “Hospitals Learn to Say Sorry,” Star Tribune [Minneapolis-St. Paul, MN], March 29,
2008.
6 Kevin Sack, “Doctors Say ‘I’m Sorry’ Before ‘See You in Court,’” New York Times, May 18, 2008.
7 Butterfield, “Apologize Like a Pro,” 14.
8 Michael S. Woods, Healing Words: The Power of Apology in Medicine (Oak Park, IL: Doctors in Touch,
2004).
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disclosure of errors and the expression of empathy; more ambiguity surrounds the types of
circumstances that, according to the medical apology literature, warrant apology.
This thesis contributes to an examination of the apology proliferation in healthcare with
the specific goals of articulating the ethical underpinnings of apology and conceptualizing
ethically and professionally appropriate responses to instances of error, both by clinicians and
administrators of health care institutions. This focus on not only clinicians but also
administrators recognizes that modern medical practice does not take place in an isolated bubble
inhabited by a lone doctor and her patient. Rather, a nexus of care providers, other professionals,
and diverse employees contribute to patient care within complex medical, legal, and insurance
systems. If we include apology as a possible ethical response under consideration (or, even, a
response that is preferable to denial), we may also need to ask the same questions posed by
sociologist Nicholas Tavuchis about apologies offered by collectives: “[H]ow is an apology
formulated in this context and what does it signify? What does it, or can it, render when
essentially inanimate, and therefore mute, social entities require human agents to speak on their
behalf? Finally, can we speak of collective sorrow and regret in any sense other than
metaphorically?”9 Armed with these concerns, I analyze the ethics of institutional apologies
offered in response to instances of medical error.
The thesis is organized into four chapters. The first chapter addresses the topic of medical
errors and differentiates among bad outcomes, adverse events, iatrogenic illness, mistakes,
negligence, and breaches of standard of care. Additionally, this chapter discusses the practical
and ethical distinctions between being wronged and being harmed, specifically with regard to
health care contexts. The second chapter turns to the topic of apology, conceptualizing it along

9 Nicholas Tavuchis, Mea Culpa: A Sociology of Apology and Reconciliation (Stanford: Stanford
University Press, 1991), 96.
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the lines of its core definition, its appropriate contexts and goals, its requisite components, key
participants in the social practice of apology, and the differences between apologies offered by
individuals and those offered by institutions through a spokesperson. The third chapter lays out
the reasons why a policy or culture of responsibility-taking is ethically valuable in contemporary
health care institutions. I discuss the roles and responsibilities appropriately assigned to
clinicians and administrators within a culture of responsibility and address the structure,
applications, limitations, and ethical considerations of policies regarding apology. The
concluding chapter addresses additional ethical rationales and considerations for apology within
a culture of responsibility. Throughout the thesis, I use the case of the transplantation error at
Duke University Medical Center that resulted in the death of Jesica Santillan and the subsequent
responses by Duke and its physicians to illustrate and test the proposed theory of apology for
medical error.
1.1 UNDERSTANDING MEDICAL ERROR
As a prerequisite to understanding ethical responses to medical error, we must be clear about
what constitutes medical error and how to differentiate between such errors and other adverse
events and bad outcomes in health care. Key terms defined and discussed in this chapter include
the standard of care, bad outcomes, adverse events and adverse drug reactions, iatrogenic illness,
medical error, sentinel events, and negligence. These concepts hold ethical as well as legal
significance, so we must be clear about what types of events warrant the offering of apology.
In order to have any discussion about error, we must presuppose that a standard exists
from which an error is some sort of deviation. The standard of care in medicine refers to
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